A blog on practice in the Nation’s second-most powerful court

Expressing outrage in briefs

“Can’t our brief express more outrage?” It’s a common client question. We lawyers ask it too. Who among us hasn’t been tempted to start a reply brief with “LOL”? But the best advice is simply to describe what happened and let any judicial outrage or LOLing bubble up spontaneously.

Reading between the lines of a decision issued this past week, the D.C. Circuit agrees. No. 21-5223, Perioperative Servs. and Logistics, LLC v. U.S. Dep’t of Veterans Affairs.

The case involved a FOIA request by a company falsely accused by an anonymous whistleblower of selling the government counterfeit products. The company was livid when the government, citing FOIA’s confidentiality rules, refused to produce the name of the whistleblower–and the district court, after reviewing the complaint in camera, sided with the government.

On appeal, the company’s anger seeped into its brief.

The first clue was that the company made “a dozen” arguments on appeal. Slip Op. 3. That’s not per se wrong, but it’s … a lot of arguments.

The second clue was that the company’s brief was “rife with accusations of procedures that ‘made the … Star Chamber look tame.’” Slip Op. 8. That was ill advised. No need to accuse a district court of acting like a medieval monarch’s private court. Just say it abused its discretion.

The third clue was that the company did the unthinkable: it used an exclamation point, complaining, in response to the government’s refusal to produce a redacted version of the complaint, “it is simply impossible that every word and punctuation mark would disclose the identity of someone!” Slip Op. 11. The D.C. Circuit was unpersuaded, but made sure to reproduce the exclamation point in its opinion.

Our point? Be very careful expressing outrage in briefs. It’s usually best to describe the outrageous thing and let it speak for itself.